Genuine reasons for condonation of delay are crucial, and lack of documentary evidence for health and financial issues may lead to dismissal of the petition.

JUDGMENT

(Prayer: Civil Revision Petition filed under Section 115 CPC against the fair and decretal order dated 11.11.2019 in I.A. No.108 of 2018 in unnumbered A.S. No. /2019 on the file of the Subordinate Judge, Nagapattinam.)

1. The present civil revision petition is filed against the order dated 11.11.2019 in I.A. No.108 of 2018 in unnumbered A.S. No. /2019 on the file of the Subordinate Judge, Nagapattinam.

2. The revision petitioners are the defendants in O.S. No.102 of 2012 on the file of the District Munsif cum Judicial Magistrate, Vedaranyam. The respondent/plaintiff filed the suit for recovery of vacant possession of the suit property and for costs. After full contest, the learned District Munsif, Vedaranyam, decreed the suit vide her orders dated 31.10.2014. Thereafter, the revision petitioners filed an appeal along with a petition in I.A. No. 108/2016 before the Subordinate Judge, Nagapattinam, seeking to condone the delay of 727 days in filing the appeal. The respondent/plaintiff filed a counter. After full contest, the learned Subordinate Judge, Nagapattinam, dismissed the application filed in I.A. No.108/2016 vide his orders dated 11.11.2019. Aggrieved over the same, the present revision petition is filed.

3. Heard Mr.S. Parthasarathy, learned counsel for the revision petitioners and Mr. D. Vairamoorthy, learned counsel for the respondent.

4. The learned counsel for the revision petitioner contended that the 1st revision petitioner was suffering from Blood Pressure and was also financially not sound. Therefore, he could not file the appeal on time before the Subordinate Judge.

5. Per contra the learned counsel for the respondent contended that the reasons stated by the petitioners to condone the delay of 727 days cannot be accepted for the simple reason that the 1st petitioner appeared before the trial court in E.P. No.27/2015 on 03.06.2015. It is also contended by him that when the Court Amin went to the suit property for taking possession of the same, the revision petitioners prevented the same and also created ruckus on that date. According to him, they also filed an application under Section 47 CPC and stalled the execution of the decree. Therefore, the respondent / plaintiff prayed for the dismissal of the present petition.

6. The trial court dismissed the application in I.A. No.108/2016 mainly on the ground that the petitioners did not adduce any documentary evidence to show that the 1st petitioner was suffering from Blood Pressure and other ailments due to old age. It is further observed that if really the petitioners are not financially sound for engaging a counsel on time, they could have approached the District Legal Services Authority for engaging a counsel and they did not avail the said opportunity. The learned Subordinate Judge had also pointed out that when the revision petitioners appeared before the Court after receiving summons in the Execution Petition on 03.06.2015, they did not bother to file an appeal immediately thereafter. Only after the lapse of 18 months, they have filed the appeal along with a petition to condone the delay of 727 days.

7. The first appellate court,relied on the decisions of this Court in Nancy Jeevadhas vs. A. Rajendhar and another reported in 2014 (3) TNLJ 158 (Civil) and C.R. Boopathy and anr. vs. V.S.Singaravelu reported in 2014 (3) TNLJ 239 (civil), observed that when the revision petitioners entered appearance in Execution Petition through an Advocate by filing vakalat, the petition to condone the delay of 727 days delay in filing the appeal cannot be sustained.

8. At the outset, it may be observed that the main contention of the revision petitioners are two fold, namely, 1) the 1st petitioner had Blood Pressure and 2) both the revision petitioners are not having sufficient means to engage a counsel on time. However, the revision petitioners in the Execution Proceedings entered appearance through counsel on 03.06.2015 and they did not file an appeal immediately thereafter.

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